QUESTION: Can the SEA be used with minors?

ANSWER: Technically yes, an SEA can be signed by a natural guardian or next of kin (205.002).

QUESTION: Can an SEA be used with a distributee who is incapacitated by something other than minority?

ANSWER: Again, technically yes and under the same section related to minor heirs. The guardian of an incapacitated distributee may sign on behalf of that distributee. In this case, you will need the court-appointed guardian’s signature.

PRACTICE NOTE: Many courts will not approve a SEA if there is a minor child involved. Check with your court before spending the filing fee only to have the order rejected.

QUESTION: Can I use an SEA if there is a will?

ANSWER: No. It is specifically noted that this is a tool to be used where Decedent died intestate.

PRACTICE TIP: The legislature added the words “who died intestate” in 1995 so for a death that occurred before 1995, SEA might be appropriate for estates under $50,000 even where there was a will.

QUESTION: Can the SEA be used to transfer real property?

ANSWER: Yes, so long as the real property is homestead property “eligible to be set aside under Section 353.051”

QUESTION: Can SEA be used for a vehicle

ANSWER: Yes, but you must specifically list the vehicle by year, make, model, and VIN. When you send the client to DMV, they must bring the order, affidavit, title, gift affidavit, and title transfer application.

PRACTICE TIP: Sometimes it is easier to use the DMV’s affidavit of heirship if there is no other property to transfer.

QUESTION: Is there a time limit to file?

ANSWER: No. Just like a determination of heirship, it can be filed any time after 30 days have passed. Because no administration is granted, there is not the same four-year rule related to filing.

QUESTION: Can an SEA be used with debts?

ANSWER: Yes, however Section 205.007(b) says any distributee is liable if the debt of the estate is not paid. Assets must exceed liabilities.

PRACTICE TIP: The mechanism to enforce is not specified in the code but arguably, a creditor of an estate could pursue distributees who take assets without paying the debts of the estate.

Small Estate Affidavits: A handbook for the Texas Lawyer

This handbook is designed to assist attorneys in the use of Small Estate Affidavits. It is the author’s hope that better understanding of the tool will enable practitioners to more efficiently use them to serve a wider population including Texans with lower income. This book is not a tool for the public to prepare their own affidavit and the author highly recommends any person wanting to use one to consult with an attorney familiar with their use. Nothing in this handbook creates an attorney-client relationship, nor is it legal advice.

Currently in Kindle format but paperback is coming soon.

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